This week, the Supreme Court announced it would refuse to hear arguments seeking to ban federally funded research using embryonic stem cells, effectively setting the issue of limited federal funding for such research to rest.

A bill that would create broad new legal immunities for school teachers to deny accepted science on biological evolution, climate change, the chemical origins or life, and human cloning inches its way toward the governor’s desk.

A Divided D.C. Circuit panel reversed Judge Lamberth’s decision to ban federal funding for embryonic stem cell research. It appears very likely, if not entirely certain, that stem cell research will ultimately be upheld against future challenges.

Two scientists brought this suit to enjoin the National Institutes of Health from funding research using human embryonic stem cells (ESCs) pursuant to the NIH’s 2009 Guidelines. The district court granted their motion for a preliminary injunction, concluding they were likely to succeed in showing the Guidelines violated the Dickey-Wicker Amendment, an appropriations rider that bars federal funding for research in which a human embryo is destroyed. We conclude the plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an ESC from an embryo, it does not prohibit funding a research project in which an ESC will be used.

To translate this a little, Lamberth held that all federally-funded ESC funding violates the Dickey-Wicker Amendment, which prohibits the use of federal funds for “research in which a human embryo or embryos are destroyed.” Even though no federal money goes to studies that actually destroy an embryo, Lamberth concluded that such research requires scientists to build upon previous research that involved the destruction of an embryo, and that this is not allowed.
Lamberth’s decision, however, cannot be squared with Supreme Court precedent. Under the Supreme Court’s decision in Chevron v. NRDC, judges are normally supposed to defer to an agency’s reading of a federal law unless the agency’s interpretation is entirely implausible, and the Obama administration quite plausibly read the Dickey-Wicker Amendment to only prohibit federal funding of the actual destruction of an embryo — not federal funding of subsequent ESC research. Accordingly, the court of appeals reversed.
Today’s decision is a very hopeful sign that Lamberth’s questionable understanding of this law will no longer undermine stem cell research. Both of the judges who joined today’s majority opinion are conservative Republican appointees. Judge Douglas Ginsburg is a hardcore tenther who once called for a return to an Depression-era vision of the Constitution that struck down child labor laws and other very basic legal protections. Judge Thomas Griffith was appointed by George W. Bush.
Their decision did leave open a slight possibility that Lamberth could try to suspend stem cell research once again. The appeals court expressly decided not to weigh on two alternative claims by the plaintiffs, including a claim that federal ESC funding is illegal “research in which a human embryo or embryos are . . . knowingly subjected to risk of injury or death,” because these claims were not first considered by the court below. Nevertheless, the appeals court made clear that “the plaintiffs have not identified, nor have we found, any precedent for upholding a preliminary injunction based upon a legal theory not embraced by the district court.”
So it appears very likely, if not entirely certain, that stem cell research will ultimately be upheld against all challenges.
Ian Millhiser is a Policy Analyst and Blogger at American Progress. This is reposted from the Wonk Room.

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